Neifert, Byrne & Ozga, P.C.

Welcome to the blog for Neifert, Byrne & Ozga, P.C., devoted to developments in the field of workers' compensation in the State of Iowa. We hope the blog provides helpful information to users, including updates of Iowa Supreme Court and Court of Appeals cases of interest to claimants and workers' compensation practitioners.

Neifert, Byrne & Ozga represents only injured workers in workers' compensation claims in Iowa. This blog is meant to provide accurate and updated information on state of workers' compensation claims in our state. Should you have further questions, please contact us at Neifert, Byrne & Ozga, P.C, 1441 29th Street, Suite 111, West Des Moines, IA 50266. Tel. 888-926-2117 (toll free). Visit us on the web at www.nbolawfirm.com or www.iowa-workers-comp.com.

Thursday, February 25, 2016

In Bridgestone/Firestone v. Dalton, No. 15-0571 (Iowa App. Feb. 24, 2016) , claimant suffered an injury to his shoulder which was denied by the company. The agency found that claimant's injury had resulted in a 50% industrial disability and a penalty of $75,000.00 was assessed against the employer by the deputy. On appeal, the penalty award was reduced to $33,027.69. The district court affirmed the commissioner's decision.

The court noted that factual issues were decided based on the substantial evidence standard, and that the application of law to facts was determined based on the "demanding 'irrational, illogical or wholly unjustifiable' standard of section 17A.19(10)(m)."

On the penalty issue, the court noted that Dr. Troll had found that because there was no specific injury, he could not relate his shoulder problems to work. Claimant subsequently saw Dr. Neff, who recommended surgery. The agency found that Dr. Troll's opinion was not a reasonable basis for the denial of the claim. Two other physicians had concluded that claimant's injury was related to his work, including Dr. Neff.

The court concluded that claimant had demonstrated a delay in payment of benefits "by the unreasonably long period of nine months." The employer had also failed to demonstrate a reasonable or probable cause for the delay. The court concluded that the commissioner's application of section 86.13 was not irrational, illogical or wholly unjustifiable. Citing Pettengill v. American Blue Ribbon Holdings, LLC, 2015 WL 9450654 at *6 (Iowa App. 2016). The causation and industrial disability awards were also affirmed.

In Gordon Sevig Trucking Co. v. Radwan, No. 15-0297 (Iowa App. Feb. 24, 2016), the court concludes that the decision of the agency finding that claimant had sustained an aggravation of his underlying back condition, a shoulder injury and a subsequent mental injury was supported by substantial evidence. The court also affirms the commissioner's 40% industrial disability award.

Claimant had suffered an earlier injury to his back, which resulted in surgery. When he was hired for the employer, he did not disclose the earlier back injury, but had no problems with his back for two years after he started work. Claimant suffered an unwitnessed slip and fall at work in November of 2009. He was transported by ambulance to the hospital. Claimant ultimately had surgery at a different level of his lumbar spine than his earlier surgery. The deputy concluded that there had been a back injury and a temporary mental health injury. A 40% industrial disability was awarded. The decision was affirmed without comment other than to note that claimant had been found credible by the deputy.

The Court of Appeals notes that it is the commissioner's duty as the trier of fact to determine the credibility of witnesses and decide factual issues. Defendants argued that because claimant's doctors did not know of the earlier back injury, their opinions should be given lesser weight. The court concludes that because medical causation was within the domain of expert testimony and the commissioner determines the weight to be given to medical testimony. The court also noted that no doctor had said the work injury was not the cause of the back problems, only that they could not say this within a reasonable degree of medical certainty. The commissioner's decision on this point and on the 40% industrial disability finding was affirmed.

Wednesday, February 24, 2016

In Kraft Foods, Inc. v. Shariff, No. 15-0287 (Iowa App. Feb. 24, 2016), the Court of Appeals addressed a situation where the deputy found that claimant's testimony was not credible and relied on the on-site physician to find that the claim did not arise out of and in the course of employment. The commissioner reversed the decision of the deputy on appeal.

Claimant was in an auto accident which resulted in a closed head injury, a back injury, a right shoulder injury and a left knee injury. He was initially treated but at some point the plant doctor "began to grow inpatient and disenchanted" with claimant, who was the safety manager for the employer. Dr. Garrels indicated that he had "lost all respect" for the claimant and discussed the "extreme nature of his manipulation." He left the impression with another treating doctor that he believed claimant was malingering.

Dr. Field and Dr. Epp found that claimant's right shoulder problems were related to the work accident and Dr. Epp concluded that a range of other injuries, including post-traumatic headaches were related. Dr .Boulden indicated that the accident did not cause the pathological findings (a SLAP tear) in claimant's shoulder, but acknowledged that claimant did not have shoulder problems before the injury.

The deputy concluded that claimant failed to prove the shoulder injury was work related. She also rejected a claim for alternate care. On appeal, the commissioner reversed and specifically ordered Dr. Garrels not to participate in further care for claimant. The decision of the commissioner was upheld on judicial review.

On appeal, the court noted that it reviewed final agency action, not the hearing officer's proposed decision. The court concluded that the deputy's determinations of veracity based on personal observation of witness demeanor was a factor to be considered on review, but noted that this did not require the court to give weight to the deputy's conclusions when they were not based on his or her personal observations of demeanor evidence. The deputy had found that claimant's personal feelings about the handling of his claims drew his credibility into question. She found that he was not credible. In reversing, the commissioner noted that the deputy's opinion was not based on demeanor, but on her assessment that his testimony was not consistent with other testimony in the case. The commissioner reversed the findings of the deputy on this point and the court stated that we "are not troubled by the commissioner's divergent fact findings on this point." The court also affirmed the commissioner's conclusion that a treating physician is not necessarily given more weight simply because of his status as a treating physician. The commissioner also concluded that Dr. Garrels' views lacked objectivity.

The court noted that the commissioner determines the weight to give expert opinions and that they were not in a position to determine whether Dr. Garrels' contrary view trumps the other medical causation evidence cited by the commissioner. The court affirmed the commissioner's award of temporary benefits and alternative medical care.

Wednesday, February 10, 2016

In Polaris Industries v. Hesby, No. 15-0629 (Iowa App. Feb. 10, 2016), the Court of Appeals addressed the issue of whether the defendant had presented sufficient evidence to justify a credit for prior injuries that occurred to claimant while working with the same employer. The agency had concluded that no satisfaction of the employer's obligations was due because the employer failed to produce sufficient evidence to justify the credit. The district court reversed, finding that claimant had acknowledged payment of at least 30 weeks of benefits and also noting that a prior hip injury had also resulted in payment of industrial disability.

On appeal, the court remanded, finding that the agency's conclusion that claimant had not received permanency benefits was not supported by substantial evidence. The court also remanded for consideration of payments made for claimant's 2009 hip injury, which had not all been paid out at the time of the decision in this case, which involved a shoulder injury. The case does not present issues relating to whether credit was allowable, only issues relating to whether the employer had proven his entitlement to credit. The agency was instructed to consider the extent of previous payments on remand.

The court also affirmed a 30% industrial award for the shoulder injury on substantial evidence grounds.

In Annett Holdings v. Roland, No. 15-0043 (Iowa App. Feb. 10, 2016), the Court of Appeals upheld a decision of the agency awarding claimant physical therapy in his home state of Alabama rather than the physical therapy that had been offered in Des Moines. When claimant had begun work for Annett Holdings, he signed a "memorandum of understanding" indicating that as a condition of employment, he agreed to temporarily relocate to Des Moines for the purposes of performing modified work if he were injured on the job. Claimant had an elbow injury, and surgery in Alabama, following which he was taken off work and referred for physical therapy, which originally occurred in Alabama.

When claimant was released to light duty work, he was temporarily relocated to a Des Moines hotel, where physical therapy was performed. Claimant filed for alternate medical care and the agency concluded that treatment provided 897 miles from claimant's residence was unreasonable and unduly inconvenient. The deputy concluded that the "memorandum of understanding" was inconsistent with section 85.18 of the Iowa Code. The district court affirmed, finding that without the memorandum of understanding, the employer could not compel claimant to travel to Des Moines for treatment.

On appeal, the employer contended that the action of the agency was not supported by substantial evidence. The employer also argued that the agency erred in reaching the conclusion that the memorandum of understanding was inconsistent with Iowa law. The employer argued that consideration of the memorandum was not a proper consideration for the agency in an alternate medical care proceeding.

The court affirms on the substantial evidence issue, finding treatment was inconvenient, was inferior and interfered with the use of a "cooling machine" prescribed by claimant's treating physician. The court noted that the physical therapy in Des Moines was decidedly inferior to the physical therapy in Alabama, and the agency's decision was supported by substantial evidence. The court also rejects the employer's argument that the agency wrongfully considered the memorandum of understanding. According to the court, by relying on the memorandum to justify the care in Iowa, the employer put into issue the legal validity of the memorandum. The court affirms the decision of the district court finding that the memorandum, in the circumstances presented, violated section 85.18 of the Code.

It would seem almost certain that an application for further review will be filed with the Supreme Court in this case, as it raises issues that were left unsettled in other cases involving truckers, treatment and healing period benefits. The memorandum was developed in light of Neal v. Annett Holdings and this case presents the first appellate challenge to the use of the memorandum.